Can I refuse to work because of COVID19? Coronavirus and work refusals in Ontario

Can you refuse to go to work during the coronavirus pandemic? Many Ontario workers are worried that their work or their workday commutes will expose them to coronavirus. Some of these worries are well-placed, while for others it’s (understandable) anxiety more than true risk of exposure to COVID19.

NOTE:This
post is general information, not legal advice. Employees considering a work
refusal or who have faced negative consequences because they refused work due
to COVID19 should contact an employment lawyer or their union as soon as
possible. Work refusal is complicated and the legal issues raised by COVID19 in
the workplace are new and unusual.

Employees
or employers with concerns about staying healthy or keeping their employees and
customers safe should seek information from doctors, nurses and scientists, not
lawyers! Please consult your family doctor, specialist, Hamilton Public Health or Public
Health Ontario.

The Occupational Health and Safety Act gives workers the
right to refuse unsafe work. In fact, it gives workers an obligation to
report equipment or working conditions that are likely to place them or their
co-workers in danger. We all have a duty to keep the workplace as safe as
possible.

The Occupational Health and Safety Act also gives
workers theright to know about any potential hazards in their
workplace and the right to participate in identifying health and safety
concerns at their workplace.

CAN ALL WORKERS REFUSE UNSAFE WORK?

However, there are exceptions for workers like police
officers, firefighters, corrections officers, workers in juvenile detention
facilities, hospital workers, long-term care home, psychiatric institutions,
mental health or rehabilitation facilities, residential group homes or other
facilities for persons with behavioural or emotional problems or a physical,
mental or developmental disability, an ambulance service or first aid clinic or
station, a government or licensed lab, or in the service of some of these
operations (i.e. a laundry service for a hospital). These workers do not have
the right to refuse or stop work if the danger they’re concerned about is a
normal condition of their employment.

For example, it is dangerous but a normal condition of a
firefighter’s employment that they go into burning buildings. Most other
workers would be able to refuse a direction to go into a burning building, but
firefighters generally cannot. These workers are also not allowed to refuse
work if that refusal directly endangers the life, health or safety of another
person. For example, if the firefighter refuses to go into a burning building
to attempt to save a child. That doesn’t mean firefighters can never refuse
unsafe work. For example, if their normal personal protective equipment (PPE)
isn’t available or is damaged, a firefighter might have grounds to refuse work.
This would depend very much on the circumstances, though.

There are some other exceptions under various Ontario laws.
For example, workers in schools or daycare facilities can’t stop working if it
means leaving children unsupervised and unsafe. In addition to these rules,
some workers have professional obligations because of their professions. People
like nurses, doctors, and lawyers may have professional duties that
occasionally require them to do work that other people would legitimately be
able to refuse. Their professional colleges can provide them with specific
information about these ethical considerations.

HOW DOES A WORKER REFUSE UNSAFE WORK BECAUSE OF CORONAVIRUS?

If a worker believes that their work equipment, physical
working conditions, workplace violence or anything that they need to use or
operate at work is likely to endanger themselves or another worker, they must
promptly report their refusal to work to their employer or supervisor.

The basic steps are:

Promptly report the circumstances of the refusal to employer or supervisor.

Employer or supervisor “forthwith” investigates the report. They should do so in the presence of the worker and, if there is one, a member of the workers’ health and safety committee or a health and safety representative or another worker who is selected by the worker’s union or workers in the workplace because of their knowledge, experience and training.

After the investigation, the employer can advise the worker that they believe that the work is safe or take steps to make the work safe.

If the worker has reasonable grounds to believe that the work is unsafe, they can still refuse to work. The employer or the worker must then notify the Ministry of Labour.

A Ministry of Labour Inspector will investigate the work refusal in consultation with the worker and the employer or their representative.

The Ministry of Labour Inspector will decide whether the work is likely to endanger the worker or some one else and give a decision in writing to the worker and the employer as soon as practical.

If the Ministry of Labour Inspector decides that the work is not likely to endanger the worker or any one else, the worker is expected to do the work.

If the Ministry of Labour Inspector decides that the work is unsafe, the Inspector will direct the Employer to take steps to make the work safe. Once the Employer has taken these steps, the worker is expected to do the work.

If you have a union, your union steward, union
representative or union business agent should be able to help you navigate this
process.

WHAT HAPPENS DURING THE INVESTIGATION?

During the employer’s investigation and any Ministry of
Labour inspection, the worker is expected to remain at work during their
regular working hours. They need to be available to the investigators, whether
it’s the employer’s investigator or the Ministry’s inspector. They should be at
a safe place near their work station. However, the employer can assign the
worker reasonable alternative work during their regular work hours or give the
employee other directions. The employee should continue to be paid during the
employer’s investigation, provided they come to work as instructed.

While the Ministry of Labour’s Inspector is investigating,
no worker should do the potentially dangerous work unless they have been
advised of the refusal and their co-worker’s reasons for refusing the work.
This information must be shared in the presence of a workers’ health and safety
representative selected by the workers in the workplace or by their union.

Workplaces with Joint Health and Safety Committees are
subject to slightly different procedures. They can apply to the Ontario Labour
Relations Board if a joint stoppage of work won’t sufficiently protect workers.

WHAT IS A HEALTH AND SAFETY REPRESENTATIVE OR A JOINT
HEALTH AND SAFETY COMMITTEE? DO WE HAVE ONE?

All provincially regulated Ontario workplaces with more than
5 employees should have at least one non-managerial employee health and safety
representative. This representative must be selected by the workers.

Workplaces with more than 20 employees must have a Joint
Health and Safety Committee. So too must smaller workplaces where employees
deal with certain regulated or designated substances, including biological,
chemical or physical agents which may be dangerous. Some short-term
construction projects do not need a Joint Health and Safety Committee.

WHAT IF THE INSPECTOR DOES NOT AGREE WITH THE WORKER?

Generally, the inspector’s decision is the final word. However, it’s illegal for your employer to retaliate against you for raising genuine concerns about workplace safety. You don’t have to be right to be protected from retaliation, but you do have to act reasonably and in good faith. Employees who abuse the work refusal process can be disciplined. Likewise, employees who refuse to work after an investigation because of a subjective but unfounded fear can be disciplined.

Illegal reprisal can include disciplining, firing or
harassing an employee because they raised legitimate concerns about
occupational health and safety. Employees who experience retaliation can apply
to the Ontario Labour Relations Board for an order that they get their job
back, be compensated for lost wages, have discipline deleted, or be paid
damages (though these are normally modest).

WHAT DOES THIS MEAN FOR COVID19?

The current situation is very unusual. Lawyers, unions and
Ministry Inspectors normally look at past cases (aka precedents) to decide
whether something is unsafe or illegal. This is a challenge when we are dealing
with something new, like the coronavirus.

At the same time, workplaces deal regularly with the flu and other contagious diseases. The Ministry of Labour released a guide to health and safety during flu season back in 2010 that may still be helpful today. It reminds employers that they have to take “every reasonable precaution” to protect workers’ health and safety. What is reasonable will depend on your job, your workplace, your personal circumstances (for example, are you immunocompromised?), your community and current medical or public health information.

WHAT IF I’M IMMUNOCOMPROMISED?

Workers who are immunocompromised may have additional protections under the Human Rights Code, which prohibits discrimination on the basis of disability. Disability discrimination includes a refusal to provide reasonable accommodation to the point of undue hardship. It can also include a refusal to reasonably consider requests for accommodation. While recent measures mean that employees may not need a sick note to take sick leave or stay home with sick family members at this time, they may need to provide support for requests for disability accommodation. Employees also need to bear in mind that the Human Rights Code does not guarantee you the perfect disability accommodation or one of your choosing, only one that is reasonable. Both employees and employers need to remember that what is reasonable accommodation or undue hardship in one case may not be in another.

This can be complicated, and we’re all dealing with new
issues right now. If you are unsure about your rights or obligations under the Human
Rights Code or Occupational Health and Safety Act, you should
contact an employment lawyer or your union as soon as possible.

WHAT IF I HAVE CORONAVIRUS OR HAVE BEEN ORDERED TO SELF-ISOLATE?

As a result of the declaration of a state of emergency in Ontario and new legislative amendments, employees have the right to job protection if they have been ordered by public health to stay home. Please read our FAQ post (linked below) to find out more.

If your employer is pushing back on your self-isolation, contact your union or an employment lawyer as soon as possible.

DISCLAIMER: This blog is for educational and informational purposes only. Results of cases described in these posts may not be typical and are not guaranteed. The accuracy of Moly Law Blog posts is not guaranteed, and laws may change from time to time. If you would like legal advice or have questions about your particular workplace problems, please contact a lawyer. Click Here to contact Hamilton labour, employment and human rights lawyers Sarah Molyneaux or Roberto Henriquez now. Contacting Molyneaux Law or using this website does not create a lawyer-client relationship. Your use of this website is entirely at your own risk.